Professional Standards Act 2004 (NT)
NORTHERN TERRITORY OF AUSTRALIA
PROFESSIONAL STANDARDS ACT 2004
As in force at 1 January 2022
NORTHERN TERRITORY OF AUSTRALIA
As in force at 1 January 2022
PROFESSIONAL STANDARDS ACT 2004
An Act to provide for the limitation of liability of members of occupational associations in certain circumstances and to facilitate improvement in the standards of services provided by those members
This Act may be cited as the
This Act comes in to operation on the date, or respective dates, fixed by the Administrator by notice in the
The objects of this Act are as follows:
(a) to enable the creation of schemes to limit the civil liability of professionals and others;
(b) to facilitate the improvement of occupational standards of professionals and others;
(c) to protect the consumers of the services provided by professionals and others;
(d) to constitute the Professional Standards Council to supervise the preparation and application of schemes and to assist in the improvement of occupational standards and protection of consumers.
(1) In this Act, unless the contrary intention appears:
another jurisdiction means a State or another Territory.appropriate Council , in relation to another jurisdiction, means the authority that, under the corresponding law of that jurisdiction, has functions that are substantially the same as the Council’s functions under this Act.business assets means the property of a person that is used in the performance of the person’s occupation and that is able to be taken in proceedings to enforce a judgment of a court.corresponding law means a law of another jurisdiction that corresponds to this Act, and includes a law of another jurisdiction that is declared by the Regulations to be a corresponding law of that jurisdiction for the purposes of this Act.costs includes fees, charges, disbursements and expenses.Council means the Professional Standards Council constituted by this Act.court includes a tribunal and an arbitrator.damages means:(a) damages awarded in respect of a claim or counter-claim or claim by way of a set-off; and
(b) costs in or in relation to the proceedings ordered to be paid in connection with such an award (other than costs incurred in enforcing a judgment or incurred on an appeal made by a defendant); and
(c) any interest payable on the amount of those damages or costs.
exercise of a function includes, where the function is a duty, the performance of the duty.function includes a power, authority and duty.interstate scheme means a scheme:(a) that has been prepared under the corresponding law of another jurisdiction; and
(b) that operates, or indicates an intention to operate, as a scheme of this jurisdiction.
judgment includes:(a) a judgment given by consent;
(b) a determination of a tribunal; and
(c) an award of an arbitrator.
occupational association means a body corporate:(a) that represents the interests of persons who are members of the same occupational group or related occupational group; and
(b) the membership of which is limited principally to members of that occupational group or related occupational group.
occupational group includes a professional group and a trade group.occupational liability means civil liability arising (in tort, contract or otherwise) directly or vicariously from anything done or omitted by a member of an occupational association acting in the performance of his or her occupation.scheme means a scheme for limiting the occupational liability of members of an occupational association, and includes an interstate scheme.this jurisdiction means the Territory.(2) A reference in this Act to the amount payable under an insurance policy in respect of an occupational liability includes a reference to:
(a) defence costs payable in respect of a claim, or notification that may lead to a claim (other than reimbursement of the defendant for time spent in relation to the claim), but only if those costs are payable out of the one sum insured under the policy in respect of the occupational liability; and
(b) the amount payable under or in relation to the policy by way of excess.
5 Exclusions from Act (1) This Act does not apply to liability for damages arising from any of the following:
(a) the death of or personal injury to a person;
(b) any negligence or other fault of a legal practitioner in acting for a client in a personal injury claim;
(c) a breach of trust;
(d) fraud or dishonesty.
(2) This Act does not apply to liability that may be the subject of proceedings under Part 9, Division 2, Subdivision 3 of the
Land Title Act 2000 .(3) This Act does not apply to any cause of action arising under, or with respect to, a contract, or contractual relations, entered into before the commencement of this Act (whether or not the action lies in contract) unless the parties, after the commencement of this Act, vary the relevant contract so as to make express provision for the application of this Act.
This Act binds the Crown in right of the Territory and, to the extent the legislative power of the Legislative Assembly permits, the Crown in all its other capacities.
(1) An occupational association may prepare a scheme.
(2) The Council may, on the application of an occupational association, prepare a scheme.
(3) The Council may, on the application of an occupational association, approve a scheme prepared under this section.
(4) A scheme prepared under this section may indicate an intention to operate as a scheme of this jurisdiction only, or of both this jurisdiction and another jurisdiction.
(1) Before approving a scheme, the Council must publish a notice in a daily newspaper circulating throughout the Territory:
(a) explaining the nature and significance of the scheme;
(b) advising where a copy of the scheme may be obtained or inspected; and
(c) inviting comments and submissions within a specified time, but not less than 21 days after publication of the notice.
(2) If the scheme indicates an intention to operate as a scheme of both this jurisdiction and another jurisdiction, the Council must also publish a similar notice in the other jurisdiction in accordance with the requirements of the corresponding law of that jurisdiction that relate to the approval of a scheme prepared in that jurisdiction.
(1) Any person may make a comment or submission to the Council concerning a scheme of which notice has been published under section 8.
(2) A comment or submission must be made within the period specified for that purpose in the notice or within any further time that the Council may allow.
(1) Before approving a scheme, the Council must consider the following:
(a) all comments and submissions made to it in accordance with section 9;
(b) the position of persons who may be affected by limiting the occupational liability of members of the occupational association concerned;
(c) the nature and level of claims relating to occupational liability made against members of the occupational association concerned;
(d) the risk management strategies of the occupational association concerned;
(e) the means by which those strategies are intended to be implemented;
(f) the cost and availability of insurance against occupational liability for members of the occupational association concerned;
(g) the standards (referred to in section 28) determined by the occupational association concerned in relation to insurance policies;
(h) the provisions contained in the proposed scheme for making and determining complaints and imposing and enforcing disciplinary measures against members of the occupational association concerned.
(2) If the scheme indicates an intention to operate as a scheme of both this jurisdiction and another jurisdiction:
(a) the Council must also consider any matter that the appropriate Council for the other jurisdiction would have to consider under the provisions of the corresponding law of that jurisdiction that relate to the approval of a scheme prepared in that jurisdiction; and
(b) the matters to be considered by the Council, whether under subsection (1) or paragraph (a), are to be considered in the context of each of the jurisdictions concerned.
11 Public hearings (1) The Council may conduct a public hearing concerning a scheme if the Council thinks it appropriate.
(2) A public hearing may be conducted in any manner that the Council determines.
(1) The Council may submit a scheme approved by it to the Minister.
(2) If the scheme indicates an intention to operate as a scheme of both this jurisdiction and another jurisdiction, the Council may also submit the scheme to the Minister administering the corresponding law of the other jurisdiction.
(1) The Minister may notify a scheme approved by the Council (or, if it is an interstate scheme, by the appropriate Council for the jurisdiction in which the scheme was prepared) in the
Gazette .(2) Sections 63A to 63C of the
Interpretation Act 1978 apply to a scheme notified under subsection (1) as though:(a) the proposed scheme were a proposed rule; and
(b) the notification were notification under section 63A(2)(a)(ii) of that Act.
(3) Section 57 of the
Interpretation Act 1978 does not apply to a scheme notified under subsection (1).(4) In this section:
interstate scheme includes an instrument amending an interstate scheme.Note This definition applies subsections (1) and (2) to instruments that amend an interstate scheme. Those subsections already apply, because of section 17(5), to instruments that amend a scheme that is not an interstate scheme.
(1) A scheme notified in the
Gazette commences:(a) on the day (subsequent to the date of notification) specified in the scheme; or
(b) if no day is specified – 2 months after the date of notification.
(2) This section is subject to any order of the Supreme Court under section 15(2) and any order of the Supreme Court of another jurisdiction under the corresponding law of that jurisdiction.
(3) This section applies despite section 63B of the
Interpretation Act 1978 .(4) In this section, a reference to a scheme includes, in relation to an interstate scheme, a reference to an instrument amending that scheme.
(1) A person who is or is reasonably likely to be affected by a scheme notified in the
Gazette (including a person who is or is reasonably likely to be affected by a scheme that operates as a scheme of another jurisdiction) may apply to the Supreme Court for an order that the scheme is void for want of compliance with this Act.(2) The Court may, on the making of the application or at any time before the scheme commences, order that the commencement of the scheme is stayed until further order of the Court.
(3) The Court, in relation to an application, may do any of the following:
(a) make an order that a scheme is void for want of compliance with this Act;
(b) decline to make an order referred to in paragraph (a);
(c) give directions as to the things that are required to be done in order that a scheme, the commencement of which is stayed under this section, may commence;
(d) make any other order it thinks fit.
(4) The Court may not make an order that an interstate scheme is void for want of compliance with this Act on the ground that the scheme fails to comply with Division 2, but may do so on the ground that the scheme fails to comply with the provisions of the corresponding law of the jurisdiction in which it was prepared that relate to the contents of schemes prepared in that jurisdiction.
(5) This section does not prevent a scheme from being challenged or called into question otherwise than under this section.
(6) In this section, a reference to a scheme includes, if it is an interstate scheme, a reference to an instrument amending that scheme.
(1) The Minister may direct the Council to review the operation of a scheme.
(2) The Council must comply with a direction under subsection (1) but may on its own initiative at any time (whether before or after the scheme ceases to have effect) review the operation of a scheme.
(3) A review may, but need not, be conducted in order to decide:
(a) in relation to a scheme prepared under this Act – whether the scheme should be amended or revoked or whether a new scheme should be made; or
(b) in relation to an interstate scheme – whether the operation of the scheme should be terminated in relation to this jurisdiction.
(4) Without limiting subsection (2), the Council may review the operation of a scheme that relates to the members of an occupational association if the association proposes under section 28 an alteration in the standards applying in relation to an insurance policy or kind of insurance policy that would, in the opinion of the Council, result in less stringent standards.
(1) An occupational association may prepare an instrument amending or revoking a scheme that relates to its members.
(2) The Council may, on the application of an occupational association, prepare or approve an instrument amending or revoking a scheme that relates to the members of the association.
(3) The Minister may direct the Council to prepare an instrument amending or revoking a scheme.
(4) The Council must comply with a direction under subsection (3) but may on its own initiative, at any time while the scheme remains in force, prepare an instrument amending or revoking a scheme.
(5) Sections 7 to 15 extend (with the necessary changes) to the amendment of a scheme by an instrument under this section.
(6) Sections 7 to 14, other than section 12(2), extend (with the necessary changes) to the revocation of a scheme by an instrument under this section.
(7) This section does not apply to an interstate scheme.
Note An instrument that amends a scheme operating in another jurisdiction may be submitted to the Minister administering the corresponding law of that jurisdiction under section 12 with a view to the instrument being published under that law. An instrument made under the corresponding law of another jurisdiction that amends an interstate scheme may be submitted to the Minister administering this Act with a view to the instrument being notified under section 13 .
(1) On notification in the
Gazette of an instrument revoking a scheme (other than an interstate scheme) that operates as a scheme of another jurisdiction, the Minister must give notice of the revocation to the Minister administering the corresponding law of that jurisdiction.(2) On receipt of a notice that an interstate scheme has been revoked under the corresponding law of the jurisdiction in which it was prepared, the Minister must publish a notice of the revocation in the
Gazette .Note Under section 33(1B), an interstate scheme will cease to have effect in this jurisdiction when it ceases to have effect in the other jurisdiction.
(1) The Council may, on the application of an occupational association, prepare an instrument terminating, in relation to this jurisdiction, the operation of an interstate scheme that relates to members of the association.
(2) The Minister may direct the Council to prepare an instrument terminating the operation of an interstate scheme in relation to this jurisdiction.
(3) The Council must comply with a direction under subsection (2), but may on its own initiative, at any time while an interstate scheme remains in force, prepare an instrument terminating the operation of the scheme in relation to this jurisdiction.
(4) Sections 8 to 13, other than section 12(2), extend (with the necessary changes) to the termination of the operation of an interstate scheme under an instrument under this section.
(5) The operation of an interstate scheme in respect of which an instrument under this section is notified under section 13, as applied by subsection (4), is terminated in relation to this jurisdiction:
(a) on the day (subsequent to the date of notification) specified in the instrument; or
(b) if no day is specified – on the day 2 months after the date of notification.
Division 2 Contents of schemes
(1) A scheme may provide that it applies to all persons within an occupational association or to a specified class or classes of persons within an occupational association.
(2) A scheme may provide that the occupational association concerned may, on application by a person, exempt the person from the scheme.
(3) A scheme ceases to apply to a person exempted from the scheme as referred to in subsection (2) on and from the date on which the exemption is granted or on and from a later date specified in the exemption.
(4) Subsection (2) does not apply to a person to whom a scheme applies by virtue of section 19, 20 or 21.
(1) If a scheme applies to a body corporate, the scheme also applies to each officer of the body corporate.
(2) If a scheme applies to a person, the scheme also applies to each partner of the person.
(3) However, if an officer of a body corporate or a partner of a person is entitled to be a member of the same occupational association as the body corporate or person but is not a member, the scheme does not apply to the officer or partner.
(4) In this section:
officer , in relation to a body corporate:(a) that is a corporation, within the meaning of the Corporations Act 2001, has the same meaning as in section 82A of that Act; or
(b) that is not a corporation within the meaning of the Corporations Act 2001, means any person (by whatever name called) who is concerned in or takes part in the management of the body corporate.
20 Employees of persons to whom scheme applies (1) If a scheme applies to a person, the scheme also applies to each employee of the person.
(2) However, if an employee of a person is entitled to be a member of the same occupational association as the person but is not a member, the scheme does not apply to the employee.
If persons are prescribed by the Regulations for section 30(4) as being associated with persons to whom a scheme applies, the scheme also applies to the prescribed persons.
A scheme may provide that if a person to whom the scheme applies and against whom a proceeding relating to occupational liability is brought is able to satisfy the court that:
(a) the person has the benefit of an insurance policy insuring the person against the occupational liability to which the cause of action relates; and
(b) the amount payable under the policy in respect of that occupational liability is not less than the amount of the monetary ceiling specified in the scheme in relation to the person;
the person is not liable in damages in relation to that cause of action above the amount of the monetary ceiling.
A scheme may provide that, if a person to whom the scheme applies and against whom a proceeding relating to occupational liability is brought is able to satisfy the court:
(a) that the person has business assets the net current market value of which is not less than the amount of the monetary ceiling specified in the scheme in relation to the person; or
(b) that:
(i) the person has business assets and the benefit of an insurance policy insuring the person against that occupational liability; and
(ii) the net current market value of the business assets and the amount payable under the policy in respect of that occupational liability, if combined, would total an amount that is not less than the amount of the monetary ceiling specified in the scheme in relation to the person;
the person is not liable in damages in relation to the cause of action above the amount so specified.
(1) A scheme may provide that if a person to whom the scheme applies and against whom a proceeding relating to occupational liability is brought is able to satisfy the court:
(a) that the person has the benefit of an insurance policy:
(i) insuring the person against that occupational liability; and
(ii) under which the amount payable in respect of that occupational liability is not less than an amount (the
limitation amount ), being a reasonable charge for the services provided by the person or which the person failed to provide and to which the cause of action relates, multiplied by the multiple specified in the scheme in relation to the person; or
(b) that the person has business assets the net current market value of which is not less than the limitation amount; or
(c) that:
(i) the person has business assets and the benefit of an insurance policy that insures the person against that occupational liability; and
(ii) the net current market value of the assets and the amount payable under the policy in respect of that occupational liability, if combined, would total an amount that is not less than the limitation amount;
the person is not liable in damages in relation to the cause of action above the limitation amount or, if the scheme specifies a minimum cap determined by the Council for the purposes of the scheme that is higher than the limitation amount, above the amount of the minimum cap so specified.
(2) In determining the amount of a reasonable charge for the purposes of such a provision, a court must have regard to any amount actually charged and to:
(a) the amount that would ordinarily be charged in accordance with a scale of charges accepted by the occupational association of which the person is a member; or
(b) if there is no such scale – the amount that a competent person of the same qualifications and experience as the person would be likely to charge in the same circumstances.
(3) This section does not limit an amount of damages to which a person is liable if the amount is less than the amount specified for the purpose in the scheme in relation to the person.
A scheme may:
(a) specify the same maximum amount of liability for all cases to which the scheme applies or different maximum amounts of liability for different cases or classes of case or for the same case or class of case for different purposes; and
(b) confer a discretionary authority on an occupational association, on application by a person to whom the scheme applies, to specify in relation to the person a higher maximum amount of liability than would otherwise apply under the scheme in relation to the person either in all cases or in any specified case or class of case.
If, in a scheme, provisions of the kind referred to in section 24 and provisions of the kind referred to in section 22 or 23 (or both) apply to a person at the same time in respect of the same occupation, the scheme must provide that the damages that may be awarded against the person are to be determined in accordance with section 24 but must not exceed the amount of the monetary ceiling specified in relation to the person in the provisions of the kind referred to in section 22 or 23.
(1) A scheme can only affect the liability for damages arising from a single cause of action to the extent to which the liability results in damages exceeding such amount (but not less than $500 000) as is determined for the purposes of the scheme by the Council and specified in the scheme.
(2) In making a determination, the Council must have regard to:
(a) the number and amounts of claims made against persons within the occupational association concerned; and
(b) the need to adequately protect consumers.
(3) A Council determination applies only to a cause of action that arises after the determination takes effect.
The liability in damages of a person to whom a scheme applies is not reduced below the relevant limitation imposed by a scheme in force under this Act because the amount available to be paid to the claimant under the insurance policy required for the purposes of this Act in respect of that liability is less than the relevant limitation.
(1) For the purposes of a scheme, an insurance policy must be a policy, or a policy of a kind, that complies with standards determined by the occupational association whose members may be insured under such a policy, or a policy of such a kind.
(2) While a scheme remains in force relating to its members, if an occupational association proposes to alter the standards previously determined by it in relation to an insurance policy or a kind of insurance policy, it must submit the proposal to the Council for approval.
(3) The Council may approve, or refuse to approve, a proposal submitted to it under subsection (2).
(4) If the Council refuses to approve the proposal, the standards remain as previously determined by the occupational association.
(1) To the extent provided by this Act and the provisions of the scheme, a scheme limits the occupational liability, in respect of a cause of action founded on an act or omission occurring during the period when the scheme is in force, of any person to whom the scheme applied at the time when the act or omission occurred.
(2) A scheme does not limit the liability of a person (the
professional ) to another person (theclient ) if, at no stage before the time when the act or omission giving rise to the cause of action concerned occurred, did the professional:(a) give, or cause to be given, to the client a document that carried a statement of a kind referred to in section 34(1); or
(b) otherwise inform the client, whether orally or in writing, that the professional’s liability was limited in accordance with this Part.
(3) Subsection (2) does not affect any limitation of the liability of a professional to a person other than the client.
(4) The applicable limitation of liability is the limitation specified by the scheme as in force at the time when the act or omission giving rise to the cause of action concerned occurred.
(5) A limitation of liability that, in accordance with this section, applies in respect of an act or omission continues to apply to every cause of action founded on it, irrespective of when the cause of action arises or proceedings are brought in respect of it, and even if the scheme has been amended or has, in accordance with section 33, ceased to be in force.
(6) A person to whom a scheme applies cannot choose not to be subject to the scheme, except in accordance with provisions included in the scheme under section 18(2).
(1) A limitation imposed by a scheme in force under this Act of an amount of damages is a limitation of the amount of damages that may be awarded for a single claim and is not a limitation of the amount of damages that may be awarded for all claims arising out of a single event.
(2) Claims by a number of persons who have a joint interest in a cause of action are to be treated as a single claim for the purposes of this Act despite the fact that they may also have several interests.
(3) Two or more claims by the same person arising out of a single event against persons to whom a scheme in force under this Act applies and who are associated are to be treated as a single claim for the purposes of this Act.
(4) Persons are associated if they are:
(a) officers, within the meaning of section 19, of the same body corporate;
(b) partners, employees of the same employer or in the relationship of employer and employee; or
(c) persons who are prescribed by the Regulations for the purposes of this subsection.
31 Effect of scheme on other parties to proceedings A scheme does not limit the liability of a person who is a party to proceedings if the scheme does not apply to the person.
A scheme in force under this Act applies to proceedings relating to an act or omission that occurred after the commencement of the scheme.
(1) A scheme must specify the period (not exceeding 5 years) for which it is to remain in force after its commencement.
(1A) Subject to subsection (2), a scheme (other than an interstate scheme) remains in force until:
(a) the period specified under subsection (1) ends; or
(b) the scheme is revoked; or
(c) the scheme’s operation ceases because of the operation of another Act; or
(d) the scheme is declared void, either by an order made by the Supreme Court under section 15 or by an order made by the Supreme Court of another jurisdiction under the corresponding law of that jurisdiction; or
(e) the scheme is disallowed under section 63C of the
Interpretation Act 1978 .
(1B) Subject to subsection (2), an interstate scheme remains in force in this jurisdiction until:
(a) the period specified under subsection (1) ends; or
(b) the scheme’s operation in relation to this jurisdiction is terminated under section 17B; or
(c) the scheme ceases to have effect in the jurisdiction in which it was prepared; or
(d) the scheme is disallowed under section 63C of the
Interpretation Act 1978 .
(2) The Minister may, by notice published in the
Gazette , extend the period for which a scheme is in force.(3) The notice must be published on or before the day when the original period ends.
(4) Only one extension may be effected under subsection (2) in respect of any particular scheme, and the maximum period of such an extension is 12 months.
(5) The period for which a scheme is to remain in force, as determined by the Council under subsection (1) before the commencement of the
Professional Standards Amendment (Mutual Recognition) Act 2008 , is taken to be specified in the scheme.
(1) If a person’s occupational liability is limited in accordance with this Part, the person must ensure that all documents given by the person to a client or prospective client that promote or advertise the person or person’s occupation, including official correspondence ordinarily used by the person in the performance of the person’s occupation and similar documents, carry a statement indicating that the person’s liability is so limited.
Maximum penalty: 50 penalty units.
(2) The Regulations may prescribe a form of statement for the purposes of this section.
(3) A person does not commit an offence against this section if the statement carried on the person’s documents is in the prescribed form.
(4) If the occupational liability of a person is limited in accordance with this Part, the person must ensure that a copy of the scheme concerned is given, or caused to be given, to any client or prospective client who requests a copy.
Maximum penalty: 50 penalty units.
(5) In this section, a document does not include a business card.
(6) In this section, a client is a person who engages another to carry out work (and, if the person is acting on behalf of a third person, then the person will be taken to be the client rather than the third person).
(1) An occupational association may require its members to hold insurance against occupational liability.
(2) Such a requirement may be imposed as a condition of membership or otherwise.
(3) The occupational association may set the standards with which the insurance must comply (for example, as to the amount of the insurance).
(4) The occupational association may specify different standards of insurance for different classes of members.
(1) An occupational association may establish a committee for monitoring and analysing claims made against its members for occupational liability or 2 or more occupational associations may establish a common committee for that purpose.
(2) It is not necessary for all the committee members to be members of the occupational association or associations concerned (for example, members may include representatives of insurers).
(3) An occupational association may, through such a committee or otherwise, issue practice advice to its members with a view to minimising claims for occupational liability.
(4) A committee may request an insurer to give it any information or a copy of any document that the committee considers will assist it in carrying out its function.
(1) If an occupational association seeks the approval of the Council under section 7 to a scheme, it must provide the Council with:
(a) a detailed list of the risk management strategies intended to be implemented in respect of its members; and
(b) the means by which those strategies are intended to be implemented.
(2) The means of implementation may be imposed as a condition of membership or otherwise.
(3) The strategies are to apply in addition to other statutory requirements and must not be inconsistent with them.
(1) An occupational association must provide information to the Council concerning its risk management strategies if requested to do so by the Council.
(2) An occupational association must provide an annual report to the Council as to the implementation and monitoring of its risk management strategies, the effect of those strategies and any changes made or proposed to be made to them.
(3) An occupational association’s annual report must include details of any findings made, or conclusions drawn, by a committee established by it (whether solely or jointly with another association or 2 or more other associations) under section 36.
(4) The occupational association’s annual report must be incorporated into the Council’s annual report in the form that the Council determines.
(1) An audit (a
compliance audit ) of the compliance of members, or of specified members or a specified class or classes of members, of an occupational association with the association’s risk management strategies:(a) may be conducted at any time by the Council or the association; or
(b) must be conducted by the association if requested to do so by the Council.
(2) If a compliance audit is conducted by the Council:
(a) the occupational association must give, and ensure that its members give, the Council any information or a copy of any document that the Council reasonably requests in connection with the conduct of the audit; and
(b) the Council must provide a copy of a report of the audit to the association.
(3) If a compliance audit is conducted by the occupational association, it must provide a copy of a report of the audit to the Council.
(1) A scheme may adopt the provisions of the Model Code set out in Schedule 1 with such additions, omissions or other modifications (if any) as may be approved by the Council.
(2) The modifications may include provisions relating to the making and determination of complaints and the imposition and enforcement of disciplinary measures against members of an occupational association, including (but not limited to) the following:
(a) the establishment of committees for the purpose of implementing the Model Code or any of its provisions;
(b) the procedure at meetings of any such committee;
(c) whether any such committee may require evidence to be given on oath;
(d) the application or exclusion of the rules of and practice as to evidence;
(e) the grounds on which a complaint may be made;
(f) the verification of complaints by statutory declaration;
(g) the suspension of members from membership or from practice;
(h) the imposition of fines;
(i) the making of appeals;
(j) the exchanging of information with other occupational associations (within or outside the Territory).
Part 6 Professional Standards Council
(1) The Professional Standards Council is established.
(2) The Council:
(a) is a body corporate with perpetual succession;
(b) has a common seal;
(c) may sue and be sued in its corporate name;
(d) may acquire, hold and dispose of real and personal property; and
(e) may do and suffer all acts and things that a body corporate may by law do and suffer.
(3) All courts must take judicial notice of the common seal of the Council affixed to a document and, until the contrary is proved, must presume that it was duly affixed.
(4) The common seal of the Council must be kept in such custody as the Council directs and must not be used except as authorised by it.
(1) The Council consists of 11 persons appointed by the Minister.
(2) The members must be persons who have experience, skills and qualifications that the Minister considers appropriate to enable them to make a contribution to the work of the Council.
(3) An act or decision of the Council is not invalid merely because of:
(a) a defect or irregularity in, or in connection with, the appointment of a member; or
(b) a vacancy in the membership of the Council, including a vacancy arising from the failure to appoint an original member.
43 Provisions relating to members of Council Schedule 2 has effect with respect to the members of the Council.
Schedule 3 has effect with respect to the procedure of the Council.
(1) The Council has the following functions:
(a) to give advice to the Minister concerning the following:
(i) the notification in the
Gazette of a scheme, or of an instrument amending or revoking a scheme;(ii) the operation of this Act;
(iii) any other matter relating to the occupational liability of members of occupational associations;
(b) to give advice to occupational associations concerning policies of insurance for the purposes of Part 2;
(c) to encourage and assist in the improvement of occupational standards of members of occupational associations;
(d) to encourage and assist in the development of self-regulation of occupational associations, including the giving of advice and assistance concerning the following:
(i) codes of ethics;
(ii) codes of practice;
(iii) quality management;
(iv) risk management;
(v) resolution of complaints by clients;
(vi) voluntary mediation services;
(vii) membership requirements;
(viii) discipline of members;
(ix) continuing occupational education;
(e) to monitor the occupational standards of persons to whom this Act applies;
(f) to monitor the compliance by an occupational association with its risk management strategies;
(g) to publish advice and information concerning the matters referred to in this section;
(h) to conduct forums, approved by the Minister, on issues of interest to members of occupational groups;
(i) to collect, analyse and provide the Minister with information on issues and policies concerning the standards of occupational groups;
(j) to institute proceedings in its own name for the prosecution of an offence against this Act or the Regulations that comes to its notice or for injunctive or other relief in respect of such offences.
(2) The Council is not empowered to give advice concerning occupational standards contained in any other Act or an instrument of a legislative or administrative character.
(3) Any advice given to the Minister by the Council may be given either at the request of the Minister or without any such request.
(4) The Council has such other functions as are conferred or imposed on it by or under this or any other Act or law.
(5) The Council is taken to have locus standi for the purpose of pursuing any injunctive or other relief in accordance with subsection (1)(j), and is not to be required to give any undertaking as to damages in connection with the grant of any interlocutory relief.
For the purpose of dealing with a scheme that operates, or indicates an intention to operate, as a scheme of both this jurisdiction and another jurisdiction, the Council:
(a) may, in the exercise of its functions under this Act, act in conjunction with the appropriate Council for the other jurisdiction; and
(b) may act in conjunction with the appropriate Council for the other jurisdiction in the exercise of that Council’s functions under the corresponding law of that jurisdiction.
(1) The Council may, by notice in writing, require an occupational association whose members are subject to a scheme in force under this Act or that seeks the approval of the Council under section 7 to a scheme, or an amendment to or revocation of a scheme, to provide information to it which it may reasonably require in order to perform its functions.
(2) An occupational association that does not comply with a notice under this section is guilty of an offence.
Maximum penalty: 20 penalty units.
(1) An occupational association may refer to the Council any complaint or other evidence received by it that a member or former member of the association has committed an offence against section 34 or an offence against the Regulations.
(2) An occupational association must provide information to the Council on:
(a) any complaint or other evidence covered by subsection (1) that it did not refer to the Council; and
(b) particulars of any action taken by it in respect of any such complaint or other evidence and of the outcome of that action.
(3) Nothing that is done in good faith under this section by or on behalf of an association subjects the association, any member of the association’s executive body or any person acting under the direction of the association or its executive body to any action, liability, claim or demand.
(1) The Council may, with the approval of the Minister, establish committees to assist it in performing its functions.
(2) It does not matter that any or all of the members of a committee are not members of the Council.
(3) The procedure for calling committee meetings and for the conduct of business at those meetings is to be as determined by the Council or (subject to any determination of the Council) by the committee.
The Council may, with the approval of the Minister, arrange for the use of the services of any staff or facilities of a government department, an administrative office or a local government council or public authority.
The Council, or a committee established under section 48, may engage as consultants to it persons with suitable qualifications and experience either in an honorary capacity or for remuneration.
(1) The Council must exercise its functions subject to:
(a) the general direction and control of the Minister; and
(b) any specific written directions given to it by the Minister.
(2) Without limiting subsection (1)(b), a direction under that subsection may require the Council to give the Minister, or provide the Minister with access to, information in its possession about a matter or class of matter specified in the direction.
(3) If the Council is given a written direction, the Council:
(a) may cause the direction to be published in the
Gazette ; and(b) must publish the direction in its next annual report under section 53.
52 Professional Standards Council Fund (1) There is established an account to be known as the Professional Standards Council Fund.
(2) There must be paid into the Professional Standards Council Fund:
(a) any money appropriated for the purposes of the Fund;
(b) any fees paid to the Council under this Act; and
(c) any other money lawfully received by, made available to, or paid to, the Council.
(3) The money standing to the credit of the Professional Standards Council Fund is to be applied as directed by the Council in the payment of the expenses incurred by it, or by a committee established by it under section 48, in carrying out its functions.
(1) As soon as practicable after 30 June, but before 1 October, in each year, the Council must prepare and forward to the Minister a report on the Council’s work and activities for the period of 12 months ending on 30 June in that year.
(2) The Minister must table the report in the Legislative Assembly as soon as practicable after receiving the report.
(1) The Chief Executive Officer may enter into the agreements the Chief Executive Officer considers appropriate with a person acting for a State or another Territory for the exercise and discharge by an officer or authority of the State or other Territory for the Territory of the powers and functions of the Council under this Act.
(2) The agreement may make provision for all or any matters necessary or convenient to be provided for or incidental to carrying out the agreement.
Example for subsection (2) The agreement may specify the extent to which a person acting for a State or another Territory must comply with Territory legislation, including the Audit Act 1995, Financial Management Act 1995 and Procurement Act 1995.
The provisions of this Act are to be regarded as part of the substantive law of the Territory.
(1) If a provision made by or under Parts 3, 4 and 5 is inconsistent with a provision made by or under another Act, the other provision prevails and the provision made by or under this Act is (to the extent of the inconsistency) of no force or effect.
(2) Except as provided by subsection (1), this Act has effect despite any other law to the contrary.
(1) This Act applies in relation to a person to whom a scheme in force under this Act applies despite any contract to the contrary.
(2) Subsection (1) does not apply to a contract entered into before the commencement of this Act.
This Act does not limit the insurance arrangements a person may make apart from those made for the purposes of this Act.
(1) The Administrator may make regulations, not inconsistent with this Act, prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) The Regulations may provide for the following:
(a) the fees for applications for the Council’s approval under Part 2, Division 1 of a scheme or an amendment to or revocation of a scheme;
(b) the annual fee to be paid to the Council by an occupational association whose members are subject to a scheme in force under this Act.
(3) A regulation may create an offence punishable by a maximum penalty of not more than 50 penalty units.
(4) Schedule 4 has effect until the first day on which any provision of regulations made under this Act comes into operation.
(1) Rules of court may be made with respect to any matter arising under Part 2.
(2) A rule of court may specify:
(a) matters relating to section 15; and
(b) the means by which the net current market value of assets may be determined for the purposes of section 23 or 24.
(3) This section does not limit the rule-making powers of any court.
(1) The Minister must review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.
(2) The review must be undertaken as soon as possible after the period of 5 years from the date of assent to this Act.
(3) A report of the outcome of the review is to be tabled in the Legislative Assembly within 12 months after the end of the period of 5 years.
In this Part:
(1) A scheme approved under this Act before the commencement of this Part is taken to be, and always to have been, a valid scheme if it would have been valid had the amendments been in force when the scheme was approved.
(2) Anything done or omitted to be done in respect of a validated scheme is taken to be, and always to have been, validly done or omitted.
(3) A relevant insurance policy is taken to comply, and always to have complied with this Act, if it would have complied had the amendments been in force when the policy was issued (a
compliant policy ).(4) This section extends to a validated scheme, validated act or omission or compliant policy, even if proceedings in relation to the scheme, act, omission or policy are pending in a court on the commencement of the
Professional Standards Amendment Act 2007 .
section 40
This Code may be cited as the Occupational Associations (Complaints and Discipline) Code.
In this Code:
(1) A complaint may be made that a member of the occupational association has acted (or has failed to act) in such a way as to justify the taking of disciplinary action against the member under this Code.
(2) A complaint may be made and dealt with even though the person about whom it is made has ceased to be a member.
4. Who may make a complaint? Any person may make a complaint (including the occupational association and the Council).
5. How is a complaint made? (1) A complaint may be made to the occupational association.
(2) The complaint must be in writing and contain the particulars of the allegations on which it is founded.
(3) The occupational association must notify the Council of each complaint made to it (other than a complaint made by the Council).
6. What happens after a complaint is made? (1) The occupational association must consider a complaint as soon as practicable after the complaint is made to it or notified to it by the Council.
(2) The association may then do one or more of the following:
(a) it may require the complainant to provide further particulars of the complaint;
(b) it may carry out an investigation into the complaint;
(c) it may attempt to resolve the complaint by conciliation;
(d) it may decline to entertain the complaint (because, for example, the complaint is frivolous, vexatious, misconceived or lacking in substance);
(e) it may conduct a hearing into the complaint.
(3) The occupational association is bound by the rules of natural justice if it conducts a hearing into the complaint.
7. What action may be taken after a hearing into a complaint? (1) After an occupational association has conducted a hearing into a complaint against a person, it may, if it finds the complaint substantiated, do one or more of the following:
(a) caution or reprimand the person;
(b) impose conditions as to the carrying out of the person’s occupation;
(c) require the person to complete specified courses of training or instruction;
(d) require the person to report as to the carrying out of the person’s occupation at the times, in the manner and to the persons specified by the association;
(e) order the person to obtain advice as to the carrying out of the person’s occupation, from such persons as are specified by the association;
(f) expel the person from membership of the association.
(2) If the association does not find the complaint substantiated, it must dismiss the complaint.
(3) The association is not entitled to make an award of compensation.
8. Notices of decisions (1) Within 30 days after a decision is made by an occupational association concerning a complaint, the complainant and the person against whom the complaint is made must be given a written statement of the decision.
(2) The statement must include the reasons for the decision.
9. What rights of representation do parties to a complaint have? The complainant and the person about whom the complaint is made are not entitled to legal representation during attempts to resolve the complaint by conciliation but are entitled to legal representation during a hearing into the complaint.
10. How may the functions of the occupational association under this Code be exercised? A function of an occupational association under this Code may, in accordance with a resolution of the association, be exercised by the executive body of the association or by a person or persons appointed for the purpose.
11. Immunity (1) A member of the executive body of an occupational association or a person acting in accordance with a resolution of an occupational association is not personally liable for anything done or omitted to be done in good faith:
(a) for the purpose of implementing this Code; or
(b) in the reasonable belief that the act or omission was for the purpose of implementing this Code.
(2) Any liability resulting from an act or omission that, but for subclause (1), would attach to a person attaches instead to the occupational association.
section 43
(1) The Minister must appoint 2 of the members of the Council (in and by their respective instruments of appointment or in and by other instruments executed by the Minister) as Chairperson and Deputy Chairperson of the Council, respectively.
(2) The Minister may remove a member from the office of Chairperson or Deputy Chairperson of the Council at any time.
(3) A person holding office as Chairperson or Deputy Chairperson of the Council vacates that office if the person:
(a) is removed from that office by the Minister;
(b) resigns that office in writing addressed to the Minister; or
(c) ceases to be a member.
2. Deputies of members (1) The Minister may appoint a person to be the deputy of a member, and the Minister may revoke any such appointment.
(2) In the absence of a member, the member’s deputy:
(a) is, if available, to act in the place of the member; and
(b) while so acting – has all the functions of the member and is taken to be a member.
(3) The deputy of a member who is Chairperson or Deputy Chairperson of the Council does not (because of this clause) have the member’s functions as Chairperson or Deputy Chairperson.
(4) A person while acting in the place of a member is entitled to be paid such allowances as the Minister may determine in respect of the person.
3. Term of office Subject to this Schedule, a member holds office for the period (not exceeding 3 years) that is specified in the member’s instrument of appointment, but is eligible (if otherwise qualified) for re‑appointment.
4. Vacancy in office of member (1) The office of a member becomes vacant if the member:
(a) completes a term of office and is not re-appointed;
(b) resigns the office in writing addressed to the Minister;
(c) is removed from office by the Minister under this clause;
(d) is absent from 4 consecutive meetings of the Council of which reasonable notice has been given to the member personally or in the ordinary course of post, except on leave granted by the Council or unless, before the expiration of 4 weeks after the last of those meetings, the member is excused by the Council for having been absent from those meetings;
(e) becomes insolvent under administration within the meaning of the Corporations Act 2001; or
(f) is convicted in the Territory of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in the Territory of an offence that, if committed in the Territory, would be an offence so punishable.
(2) The Minister may remove a member from office:
(a) for incompetence or misbehaviour;
(b) for mental or physical incapacity to carry out the duties of office satisfactorily; or
(c) for breach of, or non-compliance with, a condition of appointment.
5. Filling of vacancy in office of member If the office of a member becomes vacant, a person may, subject to this Act, be appointed to fill the vacancy.
6. Effect of certain other Acts (1) A provision made by or under any Act:
(a) requiring a person who is the holder of a specified office to devote the whole of his or her time to the duties of that office; or
(b) prohibiting the person from engaging in employment outside the duties of that office,
does not operate to disqualify the person from holding that office and also the office of a member or from accepting and retaining any remuneration payable to the person under this Act as such a member.
(2) The office of a member is not, for the purposes of any Act, an office or place of profit under the Crown.
7. Immunity (1) This section applies to a person who is:
(a) a member;
(b) a deputy of a member; or
(c) a person acting under the direction of the Council or of a member or a deputy of a member.
(2) The person is not personally liable for anything done or omitted to be done in good faith:
(a) in the exercise of a function under this Act; or
(b) in the reasonable belief that the act or omission was in the exercise of a function under this Act.
(3) Any liability resulting from an act or omission that, but for subclause (2), would attach to the person attaches instead to the Council.
section 44
The procedure for the calling of meetings of the Council and for the conduct of business at those meetings is, subject to this Act and the Regulations, to be as determined by the Council.
The quorum for a meeting of the Council is a majority of its members for the time being.
(1) The Chairperson of the Council or, in the absence of the Chairperson, the Deputy Chairperson of the Council or, in the absence of both, another member elected to chair the meeting by the members present is to preside at a meeting of the Council.
(2) The person presiding at any meeting of the Council has a deliberative vote and, in the event of an equality of votes, has a second or casting vote.
4. Voting A decision supported by a majority of the votes cast at a meeting of the Council at which a quorum is present is the decision of the Council.
5. First meeting The Chairperson of the Council is to call the first meeting of the Council in such manner as the Chairperson thinks fit.
section 58(4)
In this Part:
(1) An application by an occupational association for the approval of the Council of:
(a) a scheme prepared under section 7; or
(b) an amendment to, or the revocation of, such a scheme,
must be accompanied by a fee of $5 000.
(2) However, if the application is for the approval of the Council of a scheme prepared solely to replace a scheme that is to cease by effluxion of time to apply to the members of the relevant occupational association (and the application is made before the scheme so ceases to apply), the fee that must accompany the application is $2 000.
(3) Subclause (2) applies whether or not the scheme for which approval is sought differs in any way from the scheme that it is intended to replace.
3. Amount of annual fee The annual fee to be paid to the Council by an occupational association any of whose members are subject to a scheme in force under the Act (being a scheme that applies to all persons within the association or to a specified class or classes of persons within the association) is $35 for each person to whom the scheme applies who is a member of the association at any time during the relevant annual fee period.
4. Payment of annual fee (1) The annual fee must be paid not later than at the end of the first quarter of the annual fee period concerned.
(2) If for any reason a scheme becomes applicable to an additional member of the occupational association during the annual fee period, the payment under clause 3 must be made in respect of the additional member at the end of the quarter in which the scheme became applicable to that member.
5. Interest on overdue annual fee If any amount of the annual fee (including any payment required under clause 4(2)) is not paid within 30 days after it is due, simple interest at the rate of 0.05% per day is payable to the Council on the outstanding balance until that balance is paid.
6. Remission of amounts payable The Council may, if it considers that there are special reasons for doing so in a particular case, remit the whole or any part of any or all of the following:
(a) the fee payable under clause 2 for an application for the approval of the Council of a scheme or of an amendment to, or the revocation of, a scheme;
(b) the annual fee payable under clause 4;
(b) any interest payable under clause 5.
PART 2 – FORM OF STATEMENT 7. Notification of limitation of liability (1) For the purposes of section 34(2), the following form of statement is prescribed:
Liability limited by the [insert name of relevant Scheme approved of by the Council] Scheme, approved under the
Professional Standards Act 2004 (Northern Territory).(2) The statement must be printed in a size not less than the face measurement of Times New Roman typeface in 8 point.
1 KEY
Key to abbreviations
2 LIST OF LEGISLATION
Assent date | 21 December 2004 |
Commenced | 1 January 2006 ( |
Assent date | 18 May 2006 |
Commenced | 1 July 2006 ( |
Assent date | 8 March 2007 |
Commenced | 4 April 2007 ( |
Assent date | 11 March 2008 |
Commenced | 1 April 2008 ( |
Assent date | 17 October 2008 |
Commenced | pt 2, div 3: 1 January 2006; rem: 17 October 2008 (s 2) |
Assent date | 20 May 2010 |
Commenced | 1 July 2010 ( |
Assent date | 18 November 2010 |
Commenced | 1 March 2011 (s 2, s 2 |
Assent date | 2 June 2014 |
Commenced | s 16: 1 July 2014; s 18: 1 December 2014; rem: 2 June 2014 (s 2) |
Assent date | 15 December 2021 |
Commenced | 1 January 2022 (s 2) |
3 GENERAL AMENDMENTS
General amendments of a formal nature (which are not referred to in the table of amendments to this reprint) are made by the
4 LIST OF AMENDMENTS
s 4 amd No. 2, 2007, s 4; No. 5, 2008, s 4
s 7 amd No. 5, 2008, s 5
s 8 amd No. 5, 2008, s 6
s 10 amd No. 5, 2008, s 7
s 12 amd No. 5, 2008, s 8
s 13 amd No. 5, 2008, s 9
sub No. 27, 2008, s 18
amd No. 28, 2021, s 20
s 14 amd No. 5, 2008, s 10; No. 27, 2008, s 19; No. 28, 2021, s 20
s 15 amd No. 5, 2008, s 11; No. 27, 2008, s 20
s 16 amd No. 5, 2008, s 12
s 17 amd No. 5, 2008, s 13; No. 27, 2008, s 21
s17A ins No. 5, 2008, s 14
amd No. 27, 2008, s 22
s 17B ins No. 5, 2008, s 14
amd No. 27, 2008, s 23
s 22 sub No. 2, 2007, s 5
s 23 amd No. 2, 2007, s 6
s 24 amd No. 2, 2007, s 7
s 27A ins No. 2, 2007, s 8
s 29 amd No. 2, 2007, s 9
s 33 amd No. 5, 2008, s 15; No. , 2021, s 20
s 34 amd No. 12, 2010, s 3
s 40 amd No. 40, 2010, s 118
s 45 amd No. 5, 2008, s 16; No. 27, 2008, s 24
s 45A ins No. 5, 2008, s 17
s 46 amd No. 12, 2010, s 3
s 49 amd No. 19, 2014, s 26
s 52 amd No. 13, 2006, s 64
s 53A ins No. 13, 2006, s 65
s 58 amd No. 12, 2010, s 3
pt 8 hdg ins No. 2, 2007, s 10
ss 61 – 62 ins No. 2, 2007, s 10
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